California Employee’s Associational Disability Bias Claim Fails

By Joanne Deschenaux August 2, 2021
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An employee who claimed she was fired because she took time off to care for her ill sister failed to prove her discrimination claim under the California Fair Employment and Housing Act (FEHA), a California appeals court ruled.

The employer is a payment services company in Walnut Creek, Calif., that hired the plaintiff's younger sister as an accounting associate in December 2014. The plaintiff was hired in February 2015 to work in the company's call center and subsequently moved to the position of online risk fraud analyst.  According to their statements, the sisters lived together, and the plaintiff had acted "like a mother" by raising her younger sister.

The plaintiff's sister was granted a leave of absence beginning Aug. 31, 2016, to travel to Colombia, the sisters' country of origin, for a second opinion on treatment for carpal tunnel syndrome. A doctor detected a hernia during a physical examination, and the plaintiff's sister underwent surgery on Oct. 18, then developed sepsis and pancreatitis and was placed in the intensive care unit.

On Oct. 26, the plaintiff notified her employer that she needed to go to Colombia to take care of her sister and planned to return in a week. Her sister did not recover as quickly as anticipated, and the plaintiff changed her planned date of return twice—first to Nov. 15, then to Nov. 21.

On Nov. 17, HR notified the plaintiff that she was approved for leave through Nov. 21 and that she did not qualify for job-protected leave under the Family and Medical Leave Act (FMLA).

The plaintiff responded that she could not return to work on Nov. 21 because her sister was still in the hospital and she needed to help her "until further notice."

HR responded that, because of business needs, the plaintiff's leave could be extended only through Friday, Nov. 25, and if she did not return on Monday, Nov. 28, the company would consider her absence to be a resignation from her job. HR also told the plaintiff that she did not qualify for family leave because care of a sister was not a qualified reason for such leave under either the FMLA or the California Family Rights Act.

The plaintiff insisted that she did not want to resign from her position but could not return as the company requested. She e-mailed HR on Nov. 28 and provided a doctor's note saying that her sister was recovering from multiple surgeries and would be incapacitated for at least several more weeks.

At the end of the workday on Nov. 28, the plaintiff was fired. She and her sister did not return to California until Jan. 13, 2017. Although the company told the plaintiff she could reapply for her position, she did not do so, saying she thought the company had been unfair in firing her.

She subsequently filed a lawsuit against the company, alleging, among other claims, associational disability discrimination under FEHA. Under California law, FEHA's prohibition against disability bias extends to discrimination based on a person's association with another who has a disability.

The trial court dismissed the claim before trial, and the plaintiff appealed.

Plaintiff Could Not Perform Job

Although FEHA's prohibition against disability bias extends to discrimination based on a person's association with another who has a disability, the appeals court said, an employer is not required to wait indefinitely for an employee's need for disability-related leave to end. To prove a disability-related discrimination claim, the plaintiff must show that she was able to do the job, either with or without reasonable accommodation.

The plaintiff never suggested to the employer—and produced no evidence to the trial court—that she could perform the essential functions of her job while in Colombia. She did not request to work remotely and presented no evidence that the essential functions of her job could be performed remotely.

The statement that she would need to be away until further notice was not a request for a reasonable accommodation, and upon being informed she could not remain on leave indefinitely, she did not request an additional finite period of leave, the court noted.

In addition, there was evidence that the plaintiff's department was short-staffed. It is reasonable to infer, the court said, that an already overworked unit would be significantly affected by a long absence of one of its members.  

The appeals court affirmed the trial court's decision dismissing the associational disability bias claim.

Vega v. YapStone Inc., Calif. Ct. App., No. A160884 (June 30, 2021).

Professional Pointer: Although the company prevailed in this case, employers should be cautious in firing employees who are caring for relatives with disabilities. California recognizes associational disability bias, and if the plaintiff here had requested a finite amount of leave or had been able to perform her job remotely, the outcome might have been different.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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